United States v. Kamel Elburki , 583 F. App'x 566 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1827
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kamel Elburki
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 7, 2014
Filed: November 17, 2014
[Unpublished]
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Before COLLOTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Kamel Elburki directly appeals the sentence the district court1 imposed after he
pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
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The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
§§ 922(g)(1) and 924(a)(2). His counsel has filed a brief under Anders v. California,
386 U.S. 738 (1967), challenging the denial of a suppression motion and the
substantive reasonableness of Elburki’s sentence, and raising an ineffective-assistance
claim. Counsel also seeks leave to withdraw. Elburki has filed a supplemental brief,
claiming prosecutorial misconduct and challenging, among other things, the
voluntariness of his plea and the validity of his sentence.
To begin, we decline to consider counsel’s ineffective-assistance claim. See
United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007) (appellate court
ordinarily defers ineffective-assistance claims to 28 U.S.C. § 2255 proceedings). We
next conclude that Elburki’s plea was valid, without consideration of his newly
asserted challenge to the voluntariness of his plea based on alleged prosecutorial
misconduct. See United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.
2006) (involuntary-plea claim must be presented first to district court, otherwise claim
is not cognizable on direct appeal). We further conclude that, to the extent the
sentence is reviewable, no abuse of discretion occurred. See United States v.
Feemster, 572 F.3d 455, 461, 464 (8th Cir. 2009) (en banc) (describing appellate
review of sentencing decisions); United States v. Dalton, 478 F.3d 879, 881 (8th Cir.
2007) (extent of downward departure in defendant’s favor lies within district court’s
discretion and is virtually unreviewable on defendant’s appeal, absent unconstitutional
motive animating district court). With respect to the remaining issues raised on
appeal, we conclude that they are non-jurisdictional and foreclosed by Elburki’s valid
guilty plea. See United States v. Staples, 435 F.3d 860, 864 (8th Cir. 2006) (by
entering valid guilty plea, defendant waives all non-jurisdictional defects or errors).
Finally, having independently reviewed the record pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues.
As for counsel’s motion to withdraw, we conclude that allowing counsel to
withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement The Criminal Justice Act of 1964. We
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therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
Judge Colloton would grant counsel’s motion to withdraw. See United States
v. Eredia, 578 F. App’x 620, 621 (8th Cir. 2014) (Colloton, J., concurring in part and
dissenting in part).
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